Queen Ins. Co. v. Dearborn Sav., Loan & Bldg. Ass'n

• Decision Date: 24 October 1898
• Citation: 175 Ill. 115,51 N.E. 717
• Court: Illinois Supreme Court
• Parties: QUEEN INS. CO. v. DEARBORN SAVINGS, LOAN & BUILDING ASS'N.

175 Ill. 115

51 N.E. 717

QUEEN INS. CO.

v.DEARBORN SAVINGS, LOAN & BUILDING ASS'N.

Supreme Court of Illinois.

Oct. 24, 1898.

Appeal from appellate court, First district.

Action by the Dearborn Savings, Loan & Building Association against the Queen Insurance Company, on a policy issued to Ellie L. Graham, and made payable to plaintiff by virtue of one of its provisions. From a judgment of the appellate court (75 Ill. App. 371) affirming a judgment in favor of plaintiff, defendant appeals. Affirmed.

Magruder, J., dissenting.

Tenney, McConnell, Coffeen & Harding, for appellant.

A. B. Jenks, for appellee.

A fire insurance policy was issued by the appellant to Ellie L. Graham, to which was attached a mortgagee slip making the loss payable to the appellee, as its interest might appear. This slip was printed and contained a number of conditions, and seems to have been what is known as the ‘New York Standard Mortgagee Clause.’ A loss occurred, and appellee brought suit in its own name. The defenses against a recovery were that proof of loss was not made within 60 days, and that suit was not brought within 12 months, after the fire. There was no dispute as to the facts. A jury was waived. At the close of the plaintiff's evidence, a motion was made to find for the defendant, which was overruled. Appellant also submitted appropriate propositions of law, which raised the said defenses. The trial court found in favor of the appellee, and the appellate court affirmed that finding. The errors assigned raise the points whether the defenses should not have been sustained, and also whether the amount of interest included in the judgment is excessive, and also a question as to the admissibility of evidence.

WILKIN, J. (after stating the facts).

That there existed between the appellant insurance company and the appellee, the mortgagee of the insured property, a contract of insurance distinct from that which existed between the company and the owner, is not and cannot be questioned. Insurance Co. v. Olcott, 97 Ill. 439;Insurance Co. v. Race, 142 Ill. 338, 31 N. E. 392. The question is, what are the terms of that contract? Manifestly, the loss clause alone would not be sufficient to constitute such a contract. It is not sufficiently complete to be given that effect. Do all the terms and conditions imposed on the owner in his contract apply also to the mortgagee's contract? The answer must be found in the stipulations, construed in the light of the surrounding circumstances. In the main body of the policy we find a clause as follows: ‘If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee, * * * the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended thereto.’ The meaning of this clause is, as we understand it, that, in case a mortgagee clause is added, the contract with the mortgagee shall include only such conditions as appear in such mortgagee clause or slip. The language of the policy, particularly in determining whether the liability is limited, is always to be strictly construed against the insurer. Insurance Co. v. Robinson, 64 Ill. 265. Under the well-known rule of construction, ‘Expressio unius est exclusio alterius,’ the...